Mr Craig McGavin v Port Kennedy RSL & Services Social Club (Inc)

[2010] FWA 2755

[2010] FWA 2755

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Craig McGavin
v
Port Kennedy RSL & Services Social Club (Inc)
(U2009/13129)

DEPUTY PRESIDENT MCCARTHY PERTH, 12 APRIL 2010

Termination of employment – objection to application – application dismissed.

[1] On 20 October 2009 Mr Craig McGavin (“the Applicant”) lodged an application for unfair dismissal remedy. The Applicant claimed that his employment by the Port Kennedy RSL & Services Social Club (Inc.) (“the Respondent” or “the Club”) was terminated through the President of the Club phoning him and telling him “not to bother coming in for work to finish up” and that no other explanation was given.

[2] On 30 November 2009 the Respondent lodged an Objection to Application for Unfair Dismissal Remedy and raised an objection appearing to rely on an assertion of compliance with the Small Business Fair Dismissal Code (“the Code”) and that the Applicant had not completed a period of employment of at least one year. On 8 December 2009 I wrote to the Respondent to seek clarification as to whether that was what they were asserting and provided a copy of the Code and a checklist for them to complete and provide if it was. A completed copy of the checklist was returned the following day. The checklist returned asserted that the Respondent employed less than 15 persons and that the Applicant’s employment was terminated for serious misconduct.

[3] The matter was listed for a conference/hearing by telephone on 15 March 2010. That proceeding took place but it became apparent that there were contested facts and I decided to have a further conference/hearing in person which was listed and took place on 29 March 2010.

Submissions & Evidence

[4] Evidence was given on behalf of the Respondent by:

• Mr Peter Guest, the Manager of the Club;



• Mr Raymond Lindsay, the President of the Club; and



• Mr Colin Ching, a Vice President of the Club

[5] Evidence was given for the applicant by:

• The Applicant;



• Mr Mitchell Kibblewhite, who described himself as active member of the Club for about four years and a Committee member of the Club for about four months, including the time when the Applicant’s employment was terminated; and



• Mr Heinz Wiesniewski, an ex-employee of the Club who had been employed as a kitchen hand at the time of the termination of the Applicant’s employment.

Initial Matters to be determined

[6] Fair Work Australia (“FWA”) is obliged by the operation of s.396 of the Fair Work Act 2009 (“the FW Act”) to decide whether the person was protected from unfair dismissal and whether the dismissal was consistent with the Code.

[7] A person is protected from unfair dismissal if, amongst other requirements, the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. Further, if a dismissal is consistent with the Code then by operation of s.385(d) of the FW Act then a person has not been unfairly dismissed. A person’s dismissal is consistent with the Code if at the time the employer employed less than 15 persons and the employer complied with the Code in relation to the dismissal. 1

[8] The Code provides that it is fair for an employer to dismiss an employee without notice or warning when the employer believes, on reasonable grounds, that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Consideration

[9] It is not in contest here and I find that the Respondent employed less than 15 persons at the time of the dismissal. It does not appear to me that the Applicant was employed by the Respondent for a period of 12 months. Indeed that does not appear to be contended. That being the case the Applicant is not a person who was protected from unfair dismissal and therefore the application is outside the jurisdiction of FWA.

[10] Even if the Applicant had been employed for over 12 months I accept the evidence and submission on behalf of the Respondent that there were reasonable grounds to believe that an act of serious misconduct had occurred and as a consequence, complied with the Code. In doing so I accept that the Respondent relied on information from what he regarded to be reliable and honest persons about the alleged conduct of the Applicant. At least one of those persons provided that information from her direct involvement in the conduct alleged. I consider that there was a reasonable basis for the Respondent to form the opinion they did and that the opinion constituted a reasonable belief on their part. 2 That is not to say or suggest that the conduct did actually occur and I make no finding in that regard.

[11] The application is dismissed for want of jurisdiction.

DEPUTY PRESIDENT

Appearances:

Mr C McGavin on his own behalf

Mr M Guest for the Port Kennedy RSL & Services Social Club (Inc.)

Hearing details:

Perth:

2010.

March, 29.

 1 s.388 of the FW Act

 2   see George v Rockett [1990] HCA 26

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